Pension funds that are suing Wal-Mart can rely on e-mails
and other records published by the New York Times (NYT) and two
congressmen to make the case that the company must provide more
information about the board’s probe of the scandal, Delaware
Chancery Court Judge Leo Strine concluded.

“You don’t strike from a public proceeding material that
is already public,” Strine told Wal-Mart’s lawyers at a hearing
in Wilmington today. He did bar the pension funds from using any
documents that hadn’t already been made public and ordered them
returned to Wal-Mart.

Wal-Mart, based in Bentonville, Arkansas, faces a May 20
trial of the pension funds’ claims that the world’s largest
retailer hasn’t turned over relevant documents showing when
directors learned about the bribes and how thoroughly the
allegations were investigated.

Both U.S. and Mexican prosecutors said last year they are
investigating the bribery allegations, first reported by the
Times. The newspaper said an executive of Wal-Mart’s Mexican
unit alerted company officials in 2005 about bribes paid to
facilitate construction of new stores and warehouses.

‘Suspect Payments’

At least $24 million in “suspect payments” were made as
part of scheme, the Times said, citing internal files. The
newspaper also said Wal-Mart executives in the U.S. and Mexicolimited the company’s investigation into the bribery scheme.

Internal documents showed Wal-Mart’s Mexican unit used a
state governor in Mexico to facilitate $156,000 in bribes,
Bloomberg News reported this year. The files were released by
Democratic representatives Henry Waxman of California and Elijah Cummings of Maryland, who are investigating the bribery
allegations.

The suing funds include the California State Teachers’
Retirement System, the New York City Employees’ Retirement
System and the Indiana Electrical Workers Pension Trust Fund.

Wal-Mart’s lawyers asked Strine to bar the pension funds
from using the documents in their case seeking more information
about directors’ actions. The files were stolen from the company
and covered by “attorney-client privilege,” which applies to
confidential communications between Wal-Mart and its lawyers,
they argued.

Stolen Material

The material obtained by the Times, as well as Waxman and
Cummings, came from a former Wal-Mart employee who pilfered
reams of internal e-mails and documents, Stephen Norman, one of
the company’s lawyers, told the judge.

Strine said Wal-Mart “republished” some of the internal
documents in court filings and didn’t try to force the Times or
the congressmen to remove the documents from their websites and
return them to the company.

“It would be ridiculous if information that is already
publicly available” was barred from a public trial, he said.

Stuart Grant, a lawyer for the pension funds, said in court
filings he got the documents about a whistle-blower’s bribery
allegations in an unmarked envelope last May.

The funds contend that Wal-Mart officials may have violated
the U.S. Foreign Corrupt Practices Act of 1977 and other anti-bribery statutes in connection with the alleged payments to
Mexican officials.

‘Woefully Deficient’

The Indiana fund sued to force Wal-Mart to hand over
records about internal probes of the bribery allegations and
contends that the company had been “woefully deficient” in
producing documents.

Wal-Mart said in March it had spent $157 million on probes
of bribery allegations in its international operations and
expects to rack up more costs as the investigations continue.
The company has said it’s investigating possible FCPA violations
in Brazil, India and China along with Mexico.